Q&A: Affirmative discrimination in businesses
Affirmative discrimination in businesses
Question
Hello Rabbi,
Recently a case was publicized about a restaurant owner who gave free drinks to a table of women, and when another table of men also asked for free drinks they were refused. The men sued the business owner and won; the judge awarded them financial compensation. Israeli law says this:
Anyone engaged in supplying a public product or service, or in operating a public place, shall not discriminate in supplying the product or public service, in granting entry to the public place, or in providing service in the public place, on account of race, religion or religious group, nationality, country of origin, sex, sexual orientation, worldview, party affiliation, age, personal status, parenthood, or wearing the uniforms of the security and rescue forces or bearing their symbols.
Seemingly, according to the law, the men are right. On the other hand, the discrimination itself doesn’t feel like wrongful discrimination. What do you think of the ruling?
In addition, is a discount for soldiers in uniform at a restaurant also considered wrongful discrimination according to this?
Best regards,
Answer
It sounds absurd to me. He wants to be nice to them, or flatter them, or hit on them. That’s his right. This is not discriminatory provision of services, because it’s not provision of services at all.
Discussion on Answer
What about the common practice in clubs where women get in for free and men pay an entrance fee? The logic behind the practice is to attract more women to the club, and thereby attract more men who are looking for clubs with lots of women. Is that an improper practice?
That’s already closer, but even that still seems legitimate to me. Like letting someone in to create publicity (celebrities, for example). As long as the consideration is relevant, it isn’t discrimination.
What is discrimination that isn’t based on a relevant consideration?! And if the club owner likes the color black because it reminds him of nostalgia, and chooses to let them in at half price, what exactly is harmful or bad about that?
There are borderline cases, but decisions have to be made. When it’s a matter of personal taste, that’s probably not a sufficiently relevant reason. When there is an economic consideration, or when it’s about harm rather than preference (as in the questioner’s case), one should be stricter.
Speaking of economic considerations, sometimes there are club owners who avoid letting in Mizrahi Jews or Ethiopians, for example, out of concern that the club will be perceived as a low-class club and its revenues will drop.
So what’s the problem with that? If that really is a reasonable concern that revenues will fall, what’s wrong with it? You can be sad that this is the situation, but the consideration is completely rational.
That does indeed sound problematic, but it may be that if it turns out this really is a consideration reflecting the actual situation (and not just an excuse), it can be recognized as legitimate. As Haim wrote.
But note that it is possible that in certain situations the state intervenes and does not allow such a consideration even if it is legitimate on the principled level, in order to change the situation by force. That too is sometimes legitimate.
And why is there discrimination in admission to the court? Why isn’t Grandma Rachel, who has a degree in knitting and cooking studies, allowed to be a judge?
Rabbi Decisor, see Rashba responsa 1971 and Tashbetz there, and the glosses of the Vilna Gaon there on the Tosefta, s.v. “Grandma Rachel,” where he writes: “And regarding what The Last Decisor asked, it requires great analysis, and may God enlighten my eyes.” Then I saw that the Or Zaru’a also wondered about that Grandma who was not accepted to the court, and possibly for that reason the Rif omitted it; see there.
[Oren, regarding a discount for soldiers, from the wording of the law one could say that “discrimination” means “discrimination to someone’s detriment” and not every distinction, and according to that it is forbidden to discriminate against people wearing uniforms, but it is not forbidden to discriminate against those not wearing uniforms (they are covered under race, religion, sex, etc.), and in the restaurant case the men were discriminated against on the basis of sex]